People v. McNeal

Annotate this Case

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the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket No. 78736--Agenda 4--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ALDWIN McNEAL,
Appellant.
Opinion filed January 30, 1997.

JUSTICE HARRISON delivered the opinion of the court:
In the circuit court of Lake County a jury found the
defendant, Aldwin McNeal, guilty of three counts of first degree
murder (720 ILCS 5/9--1(a)(3) (West 1994)) in the deaths of each of
two persons, Cory Gerlach and Perry Austin, and two counts of armed
robbery (720 ILCS 5/18--2(a) (West 1994)). Prior to trial
defendant's case was severed from that of his codefendant, James
Woods. At a separate sentencing hearing, the jury found defendant
eligible for the imposition of the death penalty and determined
further that there were no mitigating factors sufficient to
preclude the imposition of that sentence. The circuit court
sentenced defendant to death accordingly and to a concurrent term
of 30 years in prison for the conviction of armed robbery of Cory
Gerlach. Following a hearing the circuit court denied his post-
trial motion for a judgment of not guilty notwithstanding the
jury's verdict or for a new trial or a new sentencing hearing. The
cause comes directly to this court for review (Ill. Const. 1970,
art. VI, 4(b); 134 Ill. 2d R. 603), where defendant presents eight
issues for our consideration. For the reasons that follow, we
affirm the judgment of the circuit court.
We turn first to defendant's contention that the trial court
erred in denying his motion to suppress as physical evidence a
handgun recovered during a warrantless search of one of his garbage
cans located outside the townhouse in which he resided. Although
the armed robbery and murders of which defendant has been convicted
occurred on or about April 7, 1994, the defendant was not
implicated in these offenses until tests that were performed upon
the handgun seized from his garbage can during an unrelated
incident on April 20, 1994, indicated that it was the weapon used
to shoot Gerlach and Austin. Defendant maintains that the officer's
warrantless search of the garbage can and seizure of the handgun
violated his fourth amendment rights because he maintained a
reasonable expectation of privacy in the contents of the garbage
can, which was situated, he argues, within the curtilage of his
residence. The can was sitting on grass about two feet from the
sidewalk and was leaning against the back of his townhouse, near
the back door and, it seems, near a barbecue grill. Marked with the
number of his townhouse, the can had to be wheeled to the edge of
the alley in order for the garbage collector to empty it of trash.
At the hearing on his motion to suppress the handgun as
evidence, the State argued, as it does here, not only that the
defendant had no expectation of privacy in the contents of the
garbage can but also that there had been exigent circumstances
justifying the officer's search of it. In denying the motion, the
trial court found that because the garbage can was located so near
the sidewalk the defendant did not have a reasonable expectation of
privacy in items placed in it. The court made no finding concerning
exigent circumstances to justify the search. However, even if we
assume, without deciding, that the defendant did have a reasonable
expectation of privacy as to the property seized from the garbage
can and to the area searched as being within the curtilage of his
dwelling, it is clear that the exigencies of the situation
justified the officer's warrantless search of the can and his
seizure of a paper bag containing the handgun from it.
At the hearing on this motion, Officer Terry Richards of the
Zion police department testified that at about 8:50 p.m. on April
20, 1994, he received a call directing him to the alley behind the
defendant's townhouse, which was one of four units in the building.
He drove a marked squad car and wore a police uniform. Upon his
arrival in the alley, he spoke immediately with two females who met
him there. The two told him that they had been in the alley with
defendant when an argument had ensued between defendant and one of
them, Sophia Degraffenreid, in which defendant had punched Sophia
in the neck and had thrown her to the ground. Defendant had asked
her if she was going to call the police and had told her he was
going to his apartment to get a gun. The two then called the police
and, when they saw the squad car come into the alley, went back
into the alley, approached Officer Richards, and told him about the
incident with defendant.
As they did so, the officer stood with his back to the
building containing defendant's townhouse. The officer testified
that the two then told him that "Aldwin McNeal had just come out,
saw the police, dropped a bag into the garbage can and went back
into the door real quick." They described the bag as a brown paper
one. Officer Richards then walked over to the apartment and the
garbage can, which was, as we have said, about two feet from the
sidewalk, opened the can, and saw a brown paper bag resting on top
of another bag of garbage near the top of the can. He removed the
brown paper bag, opened it, and found a loaded 9 millimeter handgun
inside. He unloaded the weapon, secured it, and attempted to make
contact at the door of 2136 Hebron, which was defendant's address
at the time. When he knocked on the door, James Woods and a woman
named Andrea Green answered it.
Officer Richards did not search the other of defendant's
garbage cans, explaining, "[T]hey said he stepped out, opened up
the garbage can, set the bag in there, went back inside, so I
checked that garbage can." Officer Richards was familiar with this
area from his duties as a police officer and knew that children
live, as he said, "in that entire block" and that members of the
public, including children, use the sidewalk near the garbage can
regularly at that time of the evening. The defendant was not
arrested concerning any conduct alleged with respect to Sophia
Degraffenreid on April 20, 1994.
The physical entry of the home is the chief evil against which
the fourth amendment is directed. Payton v. New York, ,
585, 63 L. Ed. 2d 639, 650, 100 S. Ct. 1371, 1379-80 (1980). A
basic principle of fourth amendment law is that searches and
seizures inside a home without a warrant are presumptively
unreasonable. Payton, 445 U.S. at 586, 63 L. Ed. 2d at 651, 100 S. Ct. at 1380. The curtilage, that is, the land immediately
surrounding and associated with the home, has been considered part
of the home itself for fourth amendment purposes, and courts have
extended fourth amendment protection to it. Oliver v. United
States, , 180, 80 L. Ed. 2d 214, 225, 104 S. Ct. 1735,
1742 (1984). "In terms that apply equally to seizures of property
and to seizures of persons, the Fourth Amendment has drawn a firm
line at the entrance to the house. Absent exigent circumstances,
that threshold may not reasonably be crossed without a warrant."
Payton, 445 U.S. at 590, 63 L. Ed. 2d at 653, 100 S. Ct. at 1382.
Between the intrusiveness of entries to search and entries to
arrest no constitutional difference exists. People v. Abney, , 166 (1980). "[A]ny differences in the intrusiveness of
entries to search and entries to arrest are merely ones of degree
rather than kind. The two intrusions share this fundamental
characteristic: the breach of the entrance to an individual's
home." Payton, 445 U.S. at 589, 63 L. Ed. 2d at 652-53, 100 S. Ct.
at 1381.
The State bears the burden of demonstrating exigent need for
a warrantless search or arrest. People v. Foskey, ,
75 (1990). Where the facts and the credibility of the witnesses are
undisputed, as here, the question of whether exigent circumstances
are present is a question of law, subject to consideration by this
court de novo. Abney, 81 Ill. 2d at 168. While each case must be
decided on the basis of the facts presented (Abney, 81 Ill. 2d at
173), factors that this court has considered relevant to a
determination of exigency in circumstances involving warrantless
entry into a private residence to effectuate an arrest include
whether: (1) the crime under investigation was recently committed;
(2) there was any deliberate or unjustified delay by the police
during which time a warrant could have been obtained; (3) a grave
offense was involved, particularly a crime of violence; (4) there
was reasonable belief that the suspect was armed; (5) the police
officers were acting on a clear showing of probable cause; (6)
there was a likelihood that the suspect would escape if he was not
swiftly apprehended; (7) there was strong reason to believe the
suspect was in the premises; and (8) the police entry was made
peaceably, albeit nonconsensually (People v. Williams, , 26 (1994)). Insofar as these factors are relevant to the
circumstances involved in Officer Richards' search of the
defendant's garbage can, we consider them here, bearing in mind
that the fundamental guiding principle is reasonableness, in accord
with constitutional provisions governing searches and seizures
(Williams, 161 Ill. 2d at 26). No list of factors bearing on
exigent circumstances is exhaustive (Foskey, 136 Ill. 2d at 75),
and these factors are merely guidelines rather than cardinal maxims
to be applied rigidly in each case. People v. White, , 216-17 (1987). To determine whether the police acted
reasonably, the court must look to the totality of the
circumstances confronting the officers at the time the entry was
made. Williams, 161 Ill. 2d at 26. These circumstances must
militate against delay and justify the officers' decision to
proceed without a warrant. Foskey, 136 Ill. 2d at 75.
In the instant case, the officer had reason to believe that in
his presence defendant was furthering the criminal activity under
investigation. Officer Richards engaged in neither deliberate nor
unjustified delay during which time a search warrant could have
been obtained. Indeed, he acted immediately upon hearing that the
defendant had emerged from his residence, seen the police, dropped
a brown paper bag into the garbage can, and retreated hastily
inside. A crime of violence was involved in which, after having
allegedly punched Degraffenreid in the neck and thrown her to the
ground, defendant had inquired whether she was going to call the
police and had told her that he was going to his apartment to get
a gun. This conduct and threat had prompted the call to police.
Very shortly after having made this threat, the defendant was
observed to engage in behavior consistent with carrying it out.
Having probable cause to believe that a crime was being committed
and that the garbage can contained evidence of crime, the officer
peaceably lifted the lid of the garbage can, removed the brown
paper bag, examined its contents, and found a loaded handgun.
Prior to ascertaining the contents of the paper bag, Officer
Richards could not know with certainty whether the bag contained
the gun defendant had said he was going to get from his apartment
or whether defendant might be yet in the process of making good on
his promise to obtain it with the result that the complainant and,
possibly, her companion as well as others might be in danger of
attack with it by the defendant. Although defendant argues that the
officer could have assured the safety of passersby had he remained
where he was while others attempted to secure a warrant to search
the garbage can, such an approach could not have alleviated any
danger that during such time the defendant might, in fact, be
armed, as he had said he would be, and might injure others. The
officer limited his search to the garbage can in which defendant
had reportedly deposited the brown paper bag and to the brown paper
bag itself, in accord with the principle that warrantless police
action must be strictly circumscribed by the exigencies that
justify its initiation (Abney, 81 Ill. 2d at 173-74). We conclude
that under the totality of the circumstances confronting the
officer at the time the entry into defendant's garbage can was
made, the officer acted in a reasonable fashion. Because exigent
circumstances justified his decision to proceed without a search
warrant, there was no constitutional infirmity in the warrantless
search and seizure challenged here. Therefore, the trial court did
not err in denying defendant's motion to suppress the handgun as
physical evidence.
Some of the evidence adduced at trial includes the following.
The bodies of the two victims, who were friends, were found lying
face down on the floor in the back of Maude's Pizza in Waukegan at
about 3 a.m. on April 8, 1994, when friends of Cory Gerlach noticed
that the lights were on and stopped to see if Cory, who was the
manager there, was cleaning the restaurant. Both men had been shot
in the back of the head, Austin at near contact or very close range
and Gerlach at contact range with the bullet passing first through
his right hand, which had been raised to the back of his head.
Usually Maude's closed between 11:30 p.m. and midnight. Between
11:20 and 11:30 p.m. on April 7, Gerlach bought a six-pack of beer
from a neighboring bar and liquor store and visited with the
bartender for about five to seven minutes. At about 11:34 p.m. a
person parked in front of the liquor store heard a "bang."
Defendant's wife, Regina, identified the handgun retrieved
from their garbage can as defendant's. She testified to having
entered a plea of guilty to the "felony charge of unlawful use of
weapons" in this case because she had bought bullets for defendant
on April 5, 1994, at his request. On April 7 defendant and James
Woods, who was living with the McNeals at the time, picked her up
from work in Waukegan at about 10:45 p.m in her automobile, a black
Mustang that had been blue. Defendant, who was wearing a blue
pullover, is taller and thinner than Woods. As Regina McNeal drove,
defendant said that he had to make a stop and told her to drive
into an alley, which was located near Maude's Pizza. She thought
that he was going into the nearby liquor store and stopped the car
near it. However, defendant said he was not going into the liquor
store and "had to do something that he had to do right then and
there." She responded by saying that she wanted him to take her
home because she "didn't want to get caught up in his bullshit."
When he said he could not take her home, that what he had to do he
had to do then, she and defendant argued. Upon his instructions,
she backed the car down the alley under a light pole and into a
space near a row of stores. As defendant and Woods were getting
ready to leave the car, defendant told Woods to "get the stuff."
When Regina told defendant she was leaving, he told her to take the
car. As defendant and James Woods were getting out of the car and
going toward the trunk and as she herself was about to get out of
the car, she observed a light on in a third-floor apartment and a
woman in the window. Defendant and Woods then went in the direction
of a business, and Regina walked north about a mile and a half to
the home of defendant's brother Tyron and his wife.
At their home Regina told Tyron's wife, Cecilia, that she and
defendant had argued and asked if she could use their telephone to
call a cab. After calling the cab, she and Cecilia talked for about
20 or 30 minutes, whereupon defendant arrived and told her to come
with him. After calling the cab to cancel it, she left with
defendant, who was in her car with James Woods. In the car Regina
noticed on the driver's side of the back seat what she thought was
some stereo equipment, which she had not seen before defendant's
arrival at Tyron's house. On North Avenue defendant, who was
driving, stopped by the side of the road, and he and Woods "threw
some things out." When the three arrived home, she went to bed, but
defendant and Woods went out. She recognized the stereo receiver
that was in evidence as one she had first noticed in her apartment
about two days after this incident.
On April 23, 1994, officers searched defendant's apartment and
found in the living room of it Gerlach's Yamaha stereo receiver,
the serial number of which had been scratched off. The model number
of the receiver, which was identified as Gerlach's, was the same as
that on the owner's manual to such a stereo unit found at Maude's
Pizza.
Cecilia McNeal testified that at about midnight or in the
early morning of April 8, 1994, defendant's wife came alone to her
house, asked to call a cab, and waited for it to arrive. When the
defendant arrived later in a "blue" car, came in the house, and
asked Regina to come with him, Regina did so. Although Regina
called the cab company back upon Cecilia's request, the cab had
already arrived.
The parties stipulated that if the taxicab driver dispatched
by Lake County Transportation were called as a witness, he would
testify that on April 7, 1994, at 11:51 p.m. a telephone request
was received for a taxicab to be sent to 2205 North Jackson Street
in Waukegan, which is the address of Tyron and Cecilia McNeal, to
pick up Regina McNeal, to take her to the 2100 block of Hebron
Avenue in Zion, which was the address of Regina and defendant at
the time. When the driver arrived at 2205 North Jackson, within
five minutes of having received the dispatch at 12:07 a.m., he
found no one outside waiting for a cab. However, at 12:15 a.m. the
driver received a communication from headquarters canceling the
request.
The parties stipulated further that if Marge Ponzio were
called as a witness, she would testify that on or about April 9,
1994, she was walking along North Avenue between Yorkhouse Road and
Blanchard Road when she found a book of checks with the business
name of Maude's Pizza, a check-cashing card bearing the name of
Cheryle Brown, who was the owner of Maude's Pizza and the mother of
Cory Gerlach, several business cards of Cheryle Brown, a roll of
pennies, and other miscellaneous items. The items she found were
entered into evidence.
Penny Lee Hill testified that at the time in question she
lived in a third-floor apartment in a building connected to Maude's
Pizza. A light illuminated the parking lot for her building. At
about 11:15 to 11:20 p.m. on April 7, 1994, she was sitting near
the window in her living room while watching a movie on television,
when she noticed what appeared to be a two-door black car driving
down the alley with its lights off. The car proceeded to the other
side of a telephone pole and then backed in. After the car backed
in, the witness saw two men come away from the car, turn around,
and then face the car, as though they were talking to someone. She
saw nothing in their hands at that time. The taller and thinner of
the two men wore a "bluish-colored coat" with a hood, which he put
up as he was looking around. The two men walked in the direction of
Maude's Pizza.
The witness called 911 and when the police responded, spoke
with them; the police were in the area for about 5 or 10 minutes.
A "couple minutes" after the police left, she saw the shorter of
the two men walking empty-handed, followed shortly thereafter by
the taller of the two carrying what appeared to be "pieces to
stereos." The taller man opened the door to the passenger side of
the car, moved the bucket seat forward, and put what he was
carrying in the back seat. The taller of the two started the car
and drove into the alley towards Jackson, not turning his lights on
until he reached Jackson where he turned north. At the police
station the witness later identified this vehicle, which was Regina
McNeal's Mustang. The witness never saw a third person leave the
vehicle or walk down the alley. Around the time the two men walked
away from the car, however, the witness looked away to watch
television for a "couple minutes."
Mary Bearden, who is the mother of defendant's daughter,
testified that shortly after 1 a.m. on April 8, 1994, defendant
came to her apartment and asked her if she would hold some stereo
equipment. When she refused to do so, he left.
Jimmy Gilmore, who had dated defendant's mother, testified
that "some days" before the defendant was arrested on April 26,
1994, the witness had asked him what had happened and that
defendant had responded, in the words of the witness, "[T]hey drove
there during the time when he was going to pick up his wife and
they went in and something was said or whatever, anyway, they ended
up in the back room or something, and that's when he told me that
he shot the people." At a later time defendant indicated that he
had taken out of Maude's Pizza, Gilmore stated, "some stuff that I
had bought from Woods, and I asked him did it come out of there and
he said yeah." The witness said that a Yamaha receiver was part of
the "merchandise" that he had bought. The defendant indicated
further to the witness that he had covered his face when he had
gone into Maude's Pizza; that James Woods had been present; that
the gun had been "[s]ome inches or so" from the victims when
defendant shot them; that when he shot the victims, they were lying
on the floor and defendant was holding them down with his foot; and
that one of the victims, in the words of the witness, "had tried to
pull up or something like that," as the defendant was shooting him.
Upon cross-examination the witness stated that during the week this
conversation took place he was using cocaine, marijuana, and
alcohol daily, that he considered himself to have been a drug
addict, and that these substances "messed up" his mind.
A police officer testified that at about 11:29 or 11:30 p.m.
he had received a dispatch of a possible burglary taking place near
Maude's Pizza and that at about 11:32 p.m. he had driven in the
alley behind the apartment building connected to Maude's Pizza. He
walked through the alley all the way to the front of Maude's Pizza,
where he noticed that the lights were on and heard loud music,
circumstances that were not unusual, so he left. He noticed a
Mustang backed into a spot behind an antique shop there and
identified it as the same vehicle portrayed in a photograph of
Regina McNeal's automobile.
Tyron McNeal testified that on the night in question, when his
wife responded to the doorbell, he recognized the voice of Regina
McNeal. Later that night defendant came to the door, and he and
Regina left together. About three days later Tyron, who was at the
time a deputy in the Lake County sheriff's department, went to
defendant's house to talk to him in an unplanned visit. When Tyron
asked defendant if he had been "involved in that thing down at the
pizza place," defendant "kind of walked away." When Tyron asked
defendant the question again, defendant responded, "Yes." Tyron
testified further that in response to his question, "Why?"
defendant "said something about the guy was a drug dealer and owed
some money." At a later time he spoke to defendant about turning
himself in, but the defendant wanted to do so later, after May 1,
1994.
Jennifer Giles, 15 years old at the time of trial in January
of 1995, testified that she had been with the defendant on March
28, 1994, at the Pizza House Restaurant in Zion when defendant
fired the handgun in evidence. Michael Zervos, the manager of the
Pizza House Restaurant on that date, testified concerning that
incident, as did the police officer who recovered an empty shell
casing and a fired projectile from the restaurant following the
incident.
Officer Richards, 16-year-old Sophia Degraffenreid, and her
companion at the time defendant threatened to get a gun from his
apartment, 14-year-old Shammara Evans, testified concerning the
circumstances associated with the recovery of the gun from
defendant's garbage can. A forensic scientist expressed the opinion
that a fired projectile found in the kitchen of Maude's Pizza had
come from the semi-automatic pistol identified as defendant's, as
had the two shell casings found in the vicinity of the bodies, a
fragment of a projectile taken from the body of Gerlach, a fragment
of a projectile taken from the body of Austin, a shell casing
recovered from the Pizza House Restaurant on March 28, 1994, and a
fired 9 millimeter projectile taken from the stairwell wall of
defendant's apartment.
The defendant contends that his trial lacked the fundamental
fairness implicit in constitutional guarantees of due process of
law because of the State's failure to correct certain testimony of
his wife concerning her plea agreement with the State. During
direct examination of this witness, she testified that conditions
of her plea agreement were that she would not be sent to the
Illinois Department of Corrections, that she could be sentenced to
up to a year in jail for that offense, and that she would testify
truthfully in the instant case. Upon cross-examination the
following colloquy between defense counsel and the witness took
place concerning part of her plea agreement:
"Q. Wasn't it also part of the agreement that there
will be no further charges filed against you in the case
where Perry Austin and Corey Gerlach were killed? Wasn't
that also part of the agreement?
A. I never even remembered them physically charging
me with it.
Q. I'm not saying that you were ever charged.
A. Okay.
Q. I am not saying that at all. But wasn't part of
the agreement when you pled guilty on May 20th of 1994
that you would not be charged with anything further in
relation to this incident, is that correct?
A. I don't recall that."
When on May 20, 1994, Regina McNeal entered her negotiated plea of
guilty to the charge of unlawful possession of firearm ammunition
by a felon, namely, Aldwin McNeal, based upon a theory of
accountability, she affirmed the trial court's understanding that
as part of the plea agreement the State would not charge her "with
anything else concerning the incident where Perry Austin and Cory
Gerlach were killed."
Relying on the proposition that the prosecution in a criminal
case is obligated to correct the testimony of its witnesses when it
knows that testimony to be false (see People v. McKinney, (1964); People v. Lueck, (1962)), defendant
maintains that a new trial must be ordered because a key component
of Regina McNeal's plea agreement was the State's promise not to
prosecute her for any offense arising out of the incident at
Maude's Pizza, she "denied" this portion of the agreement, and the
State made no attempt to correct this "falsity." He avers that the
jury should have been allowed to judge the credibility of this
"critical" witness with the knowledge that the State had agreed to
forgo prosecution of her completely for any part she might have
played in this incident. He argues that the error was significant
and, citing People v. Jimerson, (1995), that it was
not harmless.
In Jimerson we determined that, under the particular facts of
that case, the error could not be considered harmless because the
State failed to prove beyond a reasonable doubt that it did not
contribute to the jury's verdict. Jimerson, 166 Ill. 2d at 228. The
only evidence to link the defendant in Jimerson to the crimes of
which he was convicted was the testimony of Paula Gray, whose
denials of a deal between the prosecutor and herself were deemed
false. Here, by contrast, the testimony of Regina McNeal is not the
only evidence linking the defendant to the offenses committed at
Maude's Pizza. Notably, some of the other evidence consists of
inculpatory statements made by the defendant as well as ballistics
evidence. Furthermore, the testimony of other witnesses
corroborated Regina McNeal's testimony in several important
respects. We assume arguendo that Regina McNeal testified falsely
when she stated that she did not "recall" this condition of her
plea agreement, while we acknowledge the State's argument to the
contrary. However, under these circumstances and in light of the
extensive evidence of defendant's guilt apart from that afforded by
Regina McNeal's testimony, we conclude that the State has proved
beyond a reasonable doubt her uncorrected testimony concerning this
condition of her plea agreement did not contribute to the jury's
verdict and such error was, at most, harmless.
In the third issue defendant presents for our review, he
maintains that the trial court erred in denying his motion in
limine to exclude as inadmissible certain testimony of Tyron McNeal
on the basis of the clergyman's privilege set forth in the Code of
Civil Procedure (735 ILCS 5/8--803 (West 1994)). Defendant takes
the position that his statements to Tyron, which he sought to
exclude, were made while Tyron was serving in his "professional
character" and in his role as a "spiritual advisor." As a
consequence, defendant urges, the trial court should not have
compelled Tyron to disclose any of defendant's statements to him,
and the error requires a new trial. Section 8--803 of the Code of
Civil Procedure provides:
"A clergyman or practitioner of any religious
denomination accredited by the religious body to which he
or she belongs, shall not be compelled to disclose in any
court, or to any administrative board or agency, or to
any public officer, a confession or admission made to him
or her in his or her professional character or as a
spiritual advisor in the course of the discipline
enjoined by the rules or practices of such religious body
or of the religion which he or she professes, nor be
compelled to divulge any information which has been
obtained by him or her in such professional character or
as such spiritual advisor." 735 ILCS 5/8--803 (West
1994).
With respect to the defendant's motion in limine, Tyron McNeal
testified that while he was in the United States Army in Germany,
he became a member of the Church of the Second Coming in 1982 and,
later, a minister in that church. There was no ordination procedure
in this nondenominational Christian church; one became a minister
by receiving one's calling from God and by being confirmed by the
pastor. Tyron has continued to be a minister. In the United States
he has taught Sunday school, was a superintendent of Sunday school
at Mount Zion Baptist Church in Zion, Illinois, and has continued
to be a spiritual advisor. Sometime in 1982 or 1983, while he was
still in Germany, he began to be a spiritual advisor to the
defendant, who turned to Tyron regularly when he needed spiritual
advice. In April of 1994, Tyron testified, defendant turned to him
for guidance and advice. Asked whether this spiritual advice was in
relation to an incident that had happened at Maude's Pizza, the
witness responded, "Yes, some of it." By "some of it," the witness
explained, "Well, it was--some of it was about that, but most of it
was about his relationship with God. That was my main concern was
him getting right with God."
On cross-examination the witness testified that when he
returned to the United States from Germany, he was no longer a
member of the Church of the Second Coming, since he had moved out
of the area and there was no chapel in Waukegan, and he became a
member of the Mount Zion Baptist Church, of which he was a member
in April 1994. Tyron testified that the first time he had talked to
his brother about the killings at Maude's Pizza, about three days
after they had occurred, he had visited his brother and had
"grabbed" him and asked him if he had been involved in the
killings. When he was talking to him about what had happened at
Maude's Pizza, he asked defendant why he had done it and defendant
had told him that "the guy was a drug dealer," or "something to
that effect," and that he "owed him some money or something like
that." When Tyron had spoken to his brother at a later time, he had
found defendant in Zion and had talked to him about getting him to
turn himself in to the police and about what defendant wanted to do
with regard to the Maude's Pizza case. He testified that he had
chastised defendant at that time about how "stupid what he had done
was, the thing that he did, and how he ha[d] gotten everybody else
involved." Tyron stated that after his brother had been arrested in
this case, Tyron had testified before the Lake County grand jury
about these conversations with defendant in the days following the
murders at Maude's Pizza and had not asserted at that time that he
was acting as a minister in any way on the occasions of these
conversations. The transcript of proceedings before the grand jury
on April 27, 1994, when Tyron McNeal testified before it, was
admitted into evidence with respect to defendant's motion in
limine.
In ruling on the defendant's motion, the trial court found,
"based on his [Tyron's] word I suppose, that he is a practitioner
of the Church of the Second Coming, although it wasn't established
that that has any presence in the United States other than him. I
will accept that he is a practitioner of that religious
denomination." The court found further that he was "accredited by
it, although I think it's pretty tentative evidence to say the
least on that. I am willing to accept that." The court found as
well that the defendant had met the requirement that disclosure be
enjoined by the rules or practices of the religious body or
religion professed, although the court found that evidence "also
very, very shallow to meet that requirement." However, the trial
court was unable to find that the information here was obtained in
Tyron McNeal's professional character or as a spiritual advisor, as
section 8--803 requires. The trial court discussed some of the
facts it considered in making that finding, among them the fact
that during the first conversation the witness "grabbed the person
[defendant] and asked him if he did it, and that was about the end
of the conversation." Also persuasive to the trial court was the
fact that the witness had disclosed "much, if not all," of these
conversations during the grand jury proceedings "without claiming
the privilege, mentioning the privilege or even putting up a mild
protest about disclosing these things he says his religion prevents
him from disclosing." Of significance to the trial court was the
further fact, contained in the transcript of the grand jury
proceedings, that when the witness asked defendant "why he had shot
those people" at Maude's Pizza, the witness was somewhat uncertain
of defendant's response, stating, " `I don't know. I don't know
what he said. I wasn't even listening. I was too upset. He said
something about the guy owed him money or something. I wasn't even
listening. I was too upset.' "
The party asserting the privilege must establish all the
elements thereof before it may be successfully invoked. See People
v. Diercks, 88 Ill. App. 3d 1073, 1078 (1980). The finding of the
trial court in this regard will not be disturbed unless it is
against the manifest weight of the evidence. See Diercks, 88 Ill.
App. 3d at 1078. The trial court assessed the evidence pertaining
to each element of the privilege and examined with particular care
that pertaining to the final element. Contrary to defendant's
assertion, its finding that the defendant failed to establish that
his statements were made to Tyron in his professional character or
as a spiritual advisor was plainly not against the manifest weight
of the evidence, and we will not disturb it. Consequently, the
trial court properly denied defendant's motion in limine to exclude
Tyron's testimony concerning defendant's statements to him pursuant
to section 8--803.
Defendant contends next that he was denied a fair jury verdict
and his constitutional right to effective assistance of counsel
because the verdict forms that were submitted to the jury
concerning each of the three theories of first degree murder as to
each victim set forth some but not all of the elements of that
offense. The six verdict forms returned by the jury state as
follows: (1) "We, the jury, find the defendant, Aldwin McNeal,
Guilty of the offense of first degree murder (was committing the
offense of robbery) of Corey Gerlach"; (2) "We, the jury, find the
defendant, Aldwin McNeal, Guilty of the offense of first degree
murder (knowing his acts created a strong probability of great
bodily harm) of Corey Gerlach"; (3) "We, the jury, find the
defendant, Aldwin McNeal, Guilty of the offense of first degree
murder (intended to kill) of Corey Gerlach"; (4)"We, the jury, find
the defendant, Aldwin McNeal, Guilty of the offense of first degree
murder (was committing the offense of robbery) of Perry Austin";
(5) "We, the jury, find the defendant, Aldwin McNeal, Guilty of the
offense of first degree murder (knowing his acts created a strong
probability of great bodily harm) of Perry Austin"; and (6) "We,
the jury, find the defendant, Aldwin McNeal, Guilty of the offense
of first degree murder (intended to kill) of Perry Austin."
Defendant argues that these verdict forms are fatally
defective for failing to include "the first proposition for murder,
i.e., `that the defendant, or one for whose conduct he is legally
responsible, performed the acts which caused the death' of each
victim" and for failing to inform the jury that the mental state
must have existed " `when' " the acts were committed. (Emphasis in
original.) Defendant maintains further that defense counsel's
failure to object to these improper verdict forms constituted
ineffective assistance of counsel. He relies principally upon our
opinion in People v. Mack, (1995), in which the
verdict finding the defendant eligible for the death penalty
attempted to set forth a statutory aggravating factor but failed to
do so completely because it omitted an essential element. In Mack
the verdict stated, " `We, the jury, unanimously find beyond a
reasonable doubt that the following aggravating factor exists in
relation to this Murder: Larry Mack killed Joseph Kolar in the
course of an Armed Robbery.' " Mack, 167 Ill. 2d at 529-30. The
defective verdict in Mack failed to specify that the defendant had
acted with the requisite mental state of intent or knowledge as
required under section 9--1(b)(6) of the Criminal Code of 1961
(Ill. Rev. Stat. 1979, ch. 38, par. 9--1(b)(6)).
As we stated in Mack, the test of the sufficiency of a verdict
is whether the intention of the jury can be ascertained with
reasonable certainty from the language used. Mack, 167 Ill. 2d at
537. In determining the meaning of a verdict, all parts of the
record will be searched and interpreted together. Mack, 167 Ill. 2d
at 537. A verdict should have a reasonable intendment and receive
a reasonable construction; it should not be set aside unless from
necessity originating in doubt as to its meaning, or because of the
immateriality of the issues found, or because of a failure to find
upon a material issue involved. Mack, 167 Ill. 2d at 537. Where a
verdict purports to set out the elements of the offense as specific
findings, it must do so completely or be held insufficient, and a
verdict that finds the accused guilty of only a certain part of an
offense amounts to an acquittal of the residue. Mack, 167 Ill. 2d
at 537-38. However, it is well established that a general verdict
of "guilty in manner and form as charged in the indictment" or
simply "guilty" is sufficient to sustain a conviction, as is a
verdict identifying the offense by name. Mack, 167 Ill. 2d at 538.
In the instant case each of the verdicts in question
identifies the offense of which the defendant is found guilty by
name: first degree murder. The jury was instructed that
"[a] person commits the offense of first degree murder
when he kills an individual, if, in performing the acts
which cause the death,
he intends to kill that individual; or he
knows that such acts create a strong probability of
great bodily harm to that individual; or he is
committing the offense of robbery."
The jury was also instructed concerning the two propositions that
the State must prove to sustain the charge of first degree murder,
including, as the first, "[t]hat the defendant, or one for whose
conduct he is legally responsible, performed the acts which caused
the death" of each named victim and, as the second proposition,
"[t]hat when the defendant, or one for whose conduct he is legally
responsible, did so, he intended to kill" each named victim; "or he
knew that his acts created a strong probability of great bodily
harm to" each named victim; "or he was committing the offense of
robbery." The trial court instructed the jury further that "[t]he
defendant is charged in different ways with the offense of first
degree murder ***."
Whereas in Mack there was a discrepancy that might have
confused jurors between the verdict form and other instructions, no
discrepancy exists here. The parenthetical material on each of the
six verdict forms refers to one of three different ways in which
the defendant was charged with the offense of first degree murder
as to each of the two victims, ways that are explained in other
instructions to the jury in conformity with the phrases in
parentheses on the verdict forms. Were this parenthetical material
to be deemed a finding by the jury as to but a single element of
the offense or a finding of guilt as to only a part of it, the
jury's finding concerning defendant's guilt of the named offense of
first degree murder would be rendered surplusage, an unreasonable,
even absurd, construction. The meaning of the verdict and the
intention of the jury is as plain as the language of each verdict
finding him guilty of the offense of first degree murder. Thus, the
challenged verdict forms were neither insufficient nor improper.
That being so, defendant was denied neither a fair jury verdict nor
the effective assistance of counsel as a consequence of counsel's
failure to object to the verdict forms.
In the fifth issue defendant raises for review, he contends
that a new sentencing hearing is warranted because repeated remarks
of the prosecutors to the jury that defendant would kill in prison
if given any sentence other than death were improper, particularly
where there was no evidentiary basis for such argument. The first
of the three remarks about which defendant complains is this
request of the prosecutor: "I ask you not to put him in our prison
system and keep him in our prison system to be violent." The latter
two were made during the State's closing argument in rebuttal:
"And I suppose it would be something else if you could
insure yourselves that he wouldn't do this again. But he
is not sorry and you can't assure yourselves that he
won't do this again, even in prison. Not only can you not
assure yourselves that he won't do it again, but the
evidence that you have received, which is what you are
supposed to consider here, indicates the otherwise
[sic]."
"And how any person here can think that we are not
unleashing a hellion to the Department of Corrections
forever, I don't know. ***
*** He is in prison for life. There isn't any good
time to take away from him. Now he has killed two people
since the last time he has been in prison. He has had the
opportunity and the experience of watching people squirm
when shotguns were put in their mouths and guns put to
their heads with the fingers on the trigger clicking
away, those people not knowing if they are about to have
a projectile rip through their skulls like Perry Austin
did and Corey Gerlach. That man is in prison.
That man perhaps is going to have a shiv [a knife]
again, like we know he did have that one occasion. Maybe
there will be a dispute. Is there a person here who can't
say that he would hesitate to kill? I don't know how you
could."
Although the defendant made no objection to any of these
comments when they were made, he did raise the issue of their
impropriety in his post-trial motion. In denying that motion, the
trial court made four findings concerning this issue: (1) that
there was no objection; (2) that there was evidence to support
"some argument as far as future violent conduct of killing or acts
that endanger people's lives"; (3) that in the course of these
arguments the prosecutors did say that they were making the
arguments on the basis of inferences drawn from the evidence; and
(4) that even if the State's argument were improper or based
insufficiently upon the evidence, it would not have caused the jury
to make its decision on anything other than the evidence.
Although defendant avers that this issue is preserved for
review by virtue of his "very specific and lengthy post-trial
motion and arguments relative to this claim," the State asserts
correctly that defendant's failure to raise contemporaneous
objections to these remarks constitutes a waiver of the issue on
appeal. See People v. Herrett, , 209 (1990).
Defendant points out that at the hearing on his post-trial motion
each of defendant's attorneys indicated that the failure to make a
contemporaneous objection was an oversight and stated unequivocally
that it was not a matter of strategy. In the alternative, defendant
asks this court to review the question under the doctrine of plain
error, pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R.
615(a)), which allows a court of review to consider an alleged
error that has not been preserved properly for review where the
evidence is closely balanced or where the error is so fundamental
and of such magnitude that the accused was denied a fair trial.
People v. Edgeston, , 239-40 (1993). Where it is
necessary to preserve the integrity of the judicial process and to
insure a fair hearing, the plain error rule is applicable. People
v. Pitsonbarger, , 402 (1990). Although our review
discloses that application of the rule is unwarranted, we elect to
consider the merits of defendant's claim concerning these alleged
prosecutorial improprieties.
In closing argument parties may not go beyond the scope of the
evidence presented and facts fairly inferable therefrom. People v.
Holman, , 163 (1984). In the absence of supporting
evidence, a prosecutor may not speculate before a sentencing jury
that a defendant may commit future crimes if he is not sentenced to
death. People v. Hudson, , 457 (1993). Speculating
on the possibility that the defendant might commit future crimes if
he is not executed may cause the jury to focus upon a possibility
that may or may not occur and is immaterial to the jury's
consideration of aggravating and mitigating factors. Pitsonbarger,
142 Ill. 2d at 401. However, each instance of error of this kind
must be examined with respect to the facts of the case and in the
context of the closing argument as a whole. Edgeston, 157 Ill. 2d
at 241.
At the outset, we observe that the first of the remarks
defendant finds objectionable was made following the prosecutor's
comment upon the testimony of Dr. Lawrence Heinrich, a clinical
psychologist who had examined defendant and whom defendant had
called to present evidence in mitigation. Dr. Heinrich testified,
among other things, that he had diagnosed the defendant as having
antisocial personality disorder, which he describes as "what we
commonly characterize as the criminal-type personality, one that
seems to lack conscience, that seems to take advantage of other
people, that in this possibly even being aggressive, sadistic--it's
basically characterized by longstanding conflicts with the law from
the time of adolescence throughout adulthood, and that's certainly
true in Mr. McNeal's case." On cross-examination Dr. Heinrich
indicated that a description of antisocial personality disorder
includes the adjectives "mean" and "violent." Dr. Heinrich
testified at length concerning the report of a test he had given
defendant, the Millon Clinical Multi Axial Inventory, and stated,
inter alia, that he thinks defendant is "brutal" toward other
people and that defendant can be "dangerous," "[e]ven in an
institutional setting." During closing argument the prosecutor
referred expressly, and properly, to this testimony of the
defendant's expert witness in making the first of these three
remarks:
"And the doctor himself told you that he can even be
violent in prison.
I ask you not to put him in our prison system and
keep him in our prison system to be violent."
During the course of closing argument, the State ranged
broadly over the wealth of evidence amassed in aggravation against
the defendant, stressing the evidence of his criminal past, his
history of sadistic and increasingly violent behavior, his lack of
remorse, and his attitude and conduct while incarcerated. We need
not set forth in detail all of the evidence adduced in aggravation
and mitigation. It is sufficient to say that the evidence
marshalled against the defendant in aggravation far outweighed that
which he presented in mitigation. With respect to the latter two
comments, to the extent that the prosecution overstated the
evidence or drew from it inferences so expansive that they amounted
to speculation, its argument was improper. However, in light of the
evidence, any such excess on the part of the State was relatively
slight, in part because of Dr. Heinrich's testimony bearing upon
defendant's future dangerousness in prison. Under the circumstances
here the two remarks could not have diverted the attention of the
jury from considering the aggravating and mitigating factors
presented by the case, the character and record of the defendant,
or the nature and circumstances of his offense. See Holman, 103 Ill. 2d at 164. Considering these two comments in the context of
the closing argument in its entirety and all of the evidence
adduced in aggravation and mitigation, we conclude that the State
has proved beyond a reasonable doubt that the error complained of
did not contribute to the verdict and was, thus, harmless. See
Satterwhite v. Texas, , 256, 100 L. Ed. 2d 284, 293,
108 S. Ct. 1792, 1797 (1988).
As his sixth contention of error, defendant maintains that the
death penalty statute in Illinois violates the eighth and
fourteenth amendments by placing a burden of proof on the defendant
that precludes meaningful consideration of evidence in mitigation.
Defendant puts forth essentially the same arguments advanced
unsuccessfully by the defendant in People v. Hampton, (1992), in which this court pointed out it has held repeatedly
that the death penalty statute does not impose a constitutionally
impermissible burden upon a defendant. We decline to revisit the
issue.
Similarly, by way of his seventh contention of error,
defendant challenges the constitutionality of the death penalty
statute in Illinois as violative of the eighth and fourteenth
amendments for failing to minimize sufficiently the risk of
arbitrarily or capriciously imposed sentences of death. He
acknowledges that this court has considered individually several
issues he sets forth in this regard but asks us not only to
reconsider these claims but also to consider whether in their
totality the features and omissions he cites render the statute
unconstitutional. In the absence of any persuasive argument to
consider anew the individual constitutional defects he identifies,
we decline to do so. Likewise, this court has previously rejected
the argument that the cumulative effect of such features and
omissions renders the statute constitutionally infirm (People v.
Phillips, , 542-43 (1989)), and defendant presents
nothing new that persuades us to reconsider this conclusion.
In a supplemental brief defendant contends that it was eighth
amendment error, requiring a new sentencing hearing, for the
prosecutor to argue in closing at the aggravation and mitigation
phase of his hearing that his antisocial personality disorder
constituted evidence in aggravation. The precise comments to which
defendant objects are these:
"And what is antisocial personality disorder? It's just
being mean and violent is what it comes down to, and he
told you that.
Basically what it comes down to is the person we
have here, the doctors can put it into fancy words, the
fancy words being antisocial personality disorder or
whatever else they want to pick out of their book, but
the bottom line is the character of this man, his
meanness, his violence, his sadism. That's not a
mitigating factor. That's an aggravating factor. It's not
a mitigating factor that he has an antisocial personality
disorder. It's an aggravating factor. It shows you how
violent he can be. And the doctor himself told you that
he can even be violent in prison."
Defendant describes as his "most important" evidence in mitigation
Dr. Heinrich's testimony that he suffered from the statutory
mitigating factor of an "extreme mental or emotional disturbance"
(720 ILCS 5/9--1(c)(2) (West 1994)), a primary component of which
was his antisocial personality disorder. He maintains that his
"mental illness" cannot be considered as aggravation because it did
not develop as a consequence of any fault on his part and he cannot
be blamed for that which is beyond his control. In short, he
argues, his "mental illness cannot be used to justify his
execution."
In order to meet constitutional standards, a capital
sentencing hearing must permit individualized consideration of the
offender and the offense. Hudson, 157 Ill. 2d at 454. In accord
with that requirement, the sentencer in a capital case may not be
precluded from considering, or refuse to consider as a matter of
law, any relevant mitigating evidence offered by the defense.
Hudson, 157 Ill. 2d at 454; People v. Page, , 279
(1993). Allowing the sentencer to consider all relevant mitigating
evidence satisfies the requirement of individualized sentencing in
capital cases. Page, 155 Ill. 2d at 279.
However, these requirements do not oblige a prosecutor to
agree with the defendant that evidence offered in his behalf is
sufficiently mitigating to preclude imposition of the death penalty
or that it is even mitigating at all. Hudson, 157 Ill. 2d at 454.
Nor is it improper for a sentencer to consider a defendant's
evidence presented in mitigation as a factor in aggravation.
Hudson, 157 Ill. 2d at 455. Just as the sentencer may determine the
weight to be given relevant mitigating evidence, the prosecutor may
contest during the sentencing hearing the significance or weight of
the defendant's evidence presented in mitigation and disagree with
a defendant's assessment of the nature and character of it. See
Page, 155 Ill. 2d at 279-80.
We find particularly instructive People v. Henderson, (1990), in which the defendant argued that the trial court
wrongly judged the significance of evidence of his traumatic
childhood and turbulent family history and that, to a substantial
extent, he was the "involuntary product" of an extremely violent
and dysfunctional family environment, involuntary because he had
chosen neither his relatives nor his upbringing. This court in
Henderson pointed out that, contrary to the assertions of the
defendant, the Supreme Court has indicated that evidence of an
upbringing that has caused a defendant to become violent and
aggressive can be considered in aggravation, for one duty of a
sentencer is to predict a defendant's future behavior based upon
his past behavior. Henderson, 142 Ill. 2d at 339, citing Skipper v.
South Carolina, , 5, 90 L. Ed. 2d 1, 7, 106 S. Ct. 1669,
1671 (1986). Inasmuch as a defendant's upbringing is no more within
his control than is an antisocial personality disorder, it is not
unreasonable to conclude that it too may be considered in
aggravation.
Also in Henderson this court considered Penry v. Lynaugh, , 328, 106 L. Ed. 2d 256, 284, 109 S. Ct. 2934, 2951-52
(1989), in which the trial court erred by failing to instruct the
jury that it could consider and give effect to the mitigating
evidence of defendant's mental retardation and abused background.
There was evidence in Lynaugh that the defendant's mother had
beaten him about the head with a belt as a child and that he was
moderately retarded and unable to learn from experience. Penry, 492 U.S. at 308-09, 106 L. Ed. 2d at 271-72, 109 S. Ct. at 2941. The
Supreme Court recognized that "Penry's mental retardation and
history of abuse is thus a two-edged sword: it may diminish his
blameworthiness for his crime even as it indicates that there is a
probability that he will be dangerous in the future." Penry, 492 U.S. at 324, 106 L. Ed. 2d at 281, 109 S. Ct. at 2949. As we noted
in Henderson, the Court in Penry stated neither that this evidence
was inherently mitigating and the sentencer was required to
consider it as such nor that it would be improper to consider this
evidence in aggravation as it indicated that the defendant had a
violent nature not amenable to rehabilitation. Henderson, 142 Ill. 2d at 340. We think that by analogy the same conclusion can be
reached here and that defendant's antisocial personality disorder
is, likewise, a double-edged sword for purposes of mitigation and
aggravation.
Further, as this court stated in People v. Coleman, , 537 (1995), while evidence of any mental or emotional
problems that afflict a capital defendant are critically important
to the sentencing decision, not every mental or emotional condition
that can be classified as a "disorder" will necessarily be
mitigating. In Coleman the affidavit of a clinical psychologist
submitted in support of the defendant's post-conviction petition
indicated that the defendant had developed characteristics of
personality likely to be viewed as aggravating rather than
mitigating, specifically, a lack of empathy and lack of guilt or
anxiety attached to illegal or antisocial behaviors; in Coleman we
concluded that it was not clear the expert testimony would have
produced a profile that the jury would have viewed in an entirely
sympathetic light. Coleman, 168 Ill. 2d at 537-38.
In the instant case, the State's characterization of
defendant's evidence of antisocial disorder as aggravating rather
than mitigating in no way restricted the jury's individualized
consideration of the defendant and the offenses he had committed.
The State's argument neither limited the defendant's presentation
of any of his evidence in mitigation nor precluded the jury's
consideration of it. At no time did the State suggest to the jury
that the law did not allow it to consider this evidence in
mitigation (see People v. Bean, , 126 (1990)), and
defendant makes no claim that the jury was not properly instructed
by the trial court concerning consideration of it. Referring to
details of Dr. Heinrich's testimony, the prosecutor merely
disagreed with the defendant's characterization of that evidence as
mitigation, as he is permitted to do. The jury as sentencer was
allowed to consider all relevant mitigating evidence the defendant
presented so that the requirement of individualized sentencing was
satisfied. Hence, the prosecutor's characterization of defendant's
antisocial personality disorder as a factor in aggravation did not
deprive defendant of a fair and reliable sentencing hearing and
occasioned no eighth amendment error.
Therefore, for the reasons stated above, we affirm the
judgment of the circuit court of Lake County. We hereby direct the
clerk of this court to enter an order setting Wednesday, May 14,
1997, as the date on which the sentence of death entered by the
circuit court of Lake County is to be carried out. The defendant
shall be executed in a manner provided by law (725 ILCS 5/119--5
(West 1994)). The clerk of this court shall send a certified copy
of the mandate in this case to the Director of Corrections, to the
warden of Stateville Correctional Center, and to the warden of the
institution where defendant is now confined.

Affirmed.

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